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Thursday, July 28, 2011

NLRB Issues Facebook Advice

The NLRB Division of Advice issued not one… not two… but three advice memorandums analyzing when employee Facebook posts constitute concerted activity, protected by the NLRA. Spoiler alert: the employee/charging party goes 0-3 this round. Three charges, no concerted activity, and three recommendations to dismiss the charges. Here's a rundown:

Martin House

In one case, Martin House (.pdf), the employee posted comments about patients with mental disabilities while working at a facility for homeless people. Some friends chimed in, but none of them were co-workers. In fact, none of the Employee’s Facebook friends were co-workers. The advice memorandum states:

The Charging Party did not discuss her Facebook posts with any of her fellow employees, and none of her coworkers responded to the posts. Moreover, the Charging Party was not seeking to induce or prepare for group action, and her activity was not an outgrowth of the employees’ collective concerns. In fact, her Facebook posts did not even mention any terms or conditions of employment.

Seems like a no-brainer: no concerted activity. The Employee was terminated following a complaint from a former client who was friends with the Employee on Facebook. The employer had problems with the Employee disclosing potentially confidential client information, using clients’ illnesses for personal amusement, and Facebooking when she should have been working.

JT’s Porch Saloon & Eatery

In another case, JT’s Porch Saloon and Eatery (.pdf), the Employee engaged in a Facebook conversation with his step-sister which led to his termination. He complained that he hadn’t received a raise in five years and he had to help waitresses serve food but did not share in their tips. Sounds like it was related to terms and conditions of employment… so far, so good! But wait… uh oh… he also called the customers “rednecks” and “hoped they choked on glass as they drove home drunk.” That’s not gonna help.

Ultimately, the issue once again came down to whether the employee had engaged in concerted activity. The advice memorandum states:

[H]e did not discuss his Facebook posting with any of his fellow employees either before or after he wrote it, and none of his coworkers responded to the posting . . . . There also was no effort to take the bartenders’ complaints about these matters to management. In this instance, the Charging Party was merely responding to a question from his step-sister about how his evening at work went.

Sounds a lot like the first one. No concerted activity.

Wal-Mart

Finally, in Wal-Mart (.pdf), a customer service employee got a stern warning after some colorful Facebook gripes. Specifically, he proclaimed “Wuck Falmart,” called an Assistant Manager a “super mega puta,” complained that it was “retarded” the way he was chewed out for things that weren’t his fault, and said he’s talking to the Store Manager “cuz” if this “shit . . . don’t change walmart can kiss my royal white ass.” He really has a way with words. Some co-workers chimed in with “bahahaha,” “like,” and asking what gets him so wound up.

Despite the juvenile tone, this one’s got some potential! The posts are about work and co-workers actually responded! Alas, it still failed though. The advice memorandum described it as merely an “individual gripe” that didn’t “initiate or induce coworkers to engage in group action.” But what about the responses from co-workers?

[N]one of the coworkers’ Facebook responses indicate that they otherwise interpreted the Charging Party’s postings. Employee 1 merely indicated that he found Charging Party’s first Facebook posting humorous, while Employee 2 asked why the Charging Party was so “wound up.” Another coworker’s “hang in there”-type comment suggests that she only viewed his postings to be a plea for emotional support.

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Produced by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania. McQuaide Blasko also has offices in Hershey and Hollidaysburg. Mr. Miles works in the firms's Litigation and Labor & Employment Law practice groups, providing legal services to employers and employees relating to human resources, employment discrimination, and other employment law issues.